I’m going to have to drop offline to make slides for my evening class soon, but here are a few quick thoughts on the settling parties’ bombshell announcement that they’re renegotiating the settlement and need time to do it:

It’s interesting that they haven’t withdrawn the motion for settlement approval, only asked for a delay in the hearing. (Leaving the door open to try again with the current settlement if negotiations fail?)

Since last October, the settling parties have been saying that renegotiation would kill the settlement, since the original round was so contentious. Looks like the DoJ successfully called that bluff.

I may be misreading the motion, but they seem to think that they couldn’t have new text ready by October 7, but may be able to have it by November 6. Or at least, they’ll commit to a schedule then.

People have already made travel plans to come to New York and may not like the rescheduling. But the original purpose of the hearing—a debate over whether to approve the settlement as is—is now all but moot.

I have a hard time seeing Judge Chin denying the motion. I could be wrong, but pretty much everyone is now telling him to wait. Trial judges don’t like to force an issue if there’s a chance it could go away by mutual agreement.

D is for Digitize is still on, for October 8–10. We won’t have the one-two with the fairness hearing, but we will offer a rare chance to be part of the conversation over what the revised settlement should look like. Come join us—there’s still space available!

From what I understand Google Inc. and their library partners that supply them with in-copyright works have never stopped digitizing in-copyright works. Under these circumstances would it not be proper for the judge to issue a cease-and-desist against Google & Co., stopping them from digitizing books that they do not have authorization to do so?
The University of Wisconsin, Google, & Me

Any one wanting to pursue Doug Fevens suggestion would have to move to intervene because neither the Authors Guild nor the Publishers will do so.While Judge Chin has recently denied motions to intervene as untimely, I think now that we are back to square one on settlement negotiations, a strong motion to intervene on behalf of an interested party , author or publisher, might well succeed, especially in view of the
massive assault on the bona fides and good faith and adequacy of the Authors Guild, and its five named authors, made in the hundreds of filed oppositions. Given the DOJ suggestion for a foreign author class representative, a Motion to Intervene from that group should be successful.

I suspect that Judge Chin lacks the motivation and perhaps even the jurisdiction to issue something as strong as a cease-and-desist. The case before him is a “conditionally settled” civil case. He’d perhaps prefer to see someone else do the heavy lifting, given that he’s up for Senate confirmation of his promotion to the appeals court in a few months.

The DoJ, on the other hand, is in a good position to make a polite request that Google stop the scanning of in-copyright books. They don’t have to deal with the Authors Guild or the AAP, because DoJ doesn’t recognize them as representative of a class. The basis for assuming that Google will take any polite request by the DoJ seriously has to do with the DoJ’s “ongoing investigation” of antitrust issues. DoJ could begin an antitrust lawsuit against Google, and could ask the new judge for a preliminary injunction. Given that DoJ has a little bit of influence, this might not even take several years to get considered.

A better approach would be for a new group of authors or publishers to make a formal request of the DoJ to ask Google to stop the scanning, and ask Google to put already-scanned copyrighted works into a dark archive until Google gets opt-in permission, or Congress or the Supreme Court resolves the infringement issues.

For example, Germany or France might be inclined to do this on behalf of German or French authors whose books have already been scanned by Google. This could be effective because it blunts any “fair use” scanning sympathies that might otherwise be expressed by Google, the EFF, the ALA, and too many Google-eyed university librarians. The DoJ probably won’t reply to Germany or France by citing U.S. “fair use” provisions even if they believe it applies. Germany or France would be thinking in terms of their own copyright laws, not the U.S. law, and DoJ would be reluctant to insult them. All DoJ could do is tell them to file a request through diplomatic channels, or take it up with the WTO. But that’s another huge can of worms, isn’t it?

Google goes on trial in France tomorrow for its book scanning. Hopefully the outcome won’t take too long. That could keep the issue alive.

Even if we get Google to go with a dark archive and opt-in, we still have the privacy issue to deal with, for all those public domain books that Google scanned. I believe that DoJ expects the FTC to carry the ball on that one, judging from the fact that the word “privacy” wasn’t even mentioned in the DoJ’s filing with the Court.

“People have already made travel plans to come to New York and may not like the rescheduling. But the original purpose of the hearing—a debate over whether to approve the settlement as is—is now all but moot.”

The hearing was to consider both the settlement and the class certification. There’s been no indication that any changes to the class “representatives” were being considered, so objections to the adequacy of class representation would still seem to be in order.

More importantly, the cost and inconvenience to the “parties” (or their counsel) of appearing on October 7th would be minimal. They are all in the USA, most except Google in New York, and in the case of class counsel for the authors requesting a huge fee to cover their costs. The cost to pro se objectors (especially from places distant from New York, most especially abroad) of forfeiting nonrefundable travel costs and perhaps losing pay and/or the opportunity to take time off at another date if it’s too late to reschedule time off from other work (many authors have other day jobs, remember) would be sufficient, in many cases, to effectively preclude their being heard at a rescheduled hearing.

The balance of fairness clearly weighs in favor of going forward with the hearing on October 7th for the limited purpose of hearing from those class members who still wish to appear and be heard at that time and place.